6th Circuit Rules On Copyright Issue

Severe Records, LLC v. Rich et al., No. 09-6175 (6th Cir. Sep. 23, 2011).

Plaintiff Mark Christopher “Chris” Sevier authored a song entitled “Better.” Defendant Shanna Crooks recorded the song and, because they were pleased with the results, they co-authored and recorded a second song, “Watching Me Leave.” Their relationship then collapsed, Crooks signed as a recording artist with unrelated recording and management companies, and various

accusations and altercations followed, precipitating this action. Sevier and his recording company, Severe Records, LLC (collectively, “Plaintiffs”) filed suit, alleging what Sevier characterized as a “novel” claim of copyright infringement against Crooks and

others for preventing Plaintiffs from commercially exploiting the two songs through threats contained in cease-and-desist letters and requests to music retailers that the songs not be offered for sale. Plaintiffs also sought a declaratory judgment regarding the authorship of the songs and ownership of the copyrights to the two songs. The district court dismissed the amended complaint for failing to state a claim of copyright infringement and declined to consider Plaintiffs’ pendent state law claims or issue a declaratory judgment. The 6th Circuit affirmed the district court’s dismissal of the copyright infringement claim and reversed its dismissal of the

declaratory judgment claim.

There is no allegation anywhere in the amended complaint that Crooks did anything with the musical composition “Better” other than utilize the sound recording that she and Sevier created and that she was admittedly permitted to use for commercial or non-commercial gain. Indeed, Plaintiffs conceded in paragraph 735 of their amended complaint that “[t]he Defendants did not engage in unauthorized copying, but rather, their actions prevented Plaintiffs from copying.” That ends the inquiry; no claim for copyright infringement was properly alleged. Plaintiffs’ allegation that “Crooks attempted to transfer and did transfer an interest in the composition ‘Better’, [sic] which she did not own, to the Rich Defendants” is not the same thing as creating an improper copy of “Better.” We read nothing in the plain language of the Copyright Act, 17 U.S.C. § 106, to suggest that such a transfer constitutes copyright infringement. We expressly decline Plaintiffs’ invitation to grossly expand copyright infringement causes of action to include any acts that create barriers to a copyright holder’s ability to fully exploit that copyright.

Judge Reduces TM Jury Verdict Award To Hendrix

Experience Hendrix, LLC v. Hendrixlicensing.com, Ltd. et al., No. 2:09-cv-00285 (W.D. Wash. filed Sep. 21, 2011) [Doc. 160].

Plaintiffs own various tradmarks incorporating Jimi Hendrix's name, image, signature, song titles and/or lyrics. Defendants used one or more of these federally registered markes on products bearing Hendrix's image or art he created. The case proceeded to trial on three issues: damages for trademark infringement, defendants' liability for violation of Washington's Consumer Protection Act, and upon a finding of liability, actual damages for the consumer protection violation. After trial, the jury deliberated and rendered a verdict in favor of plaintiffs awarding, on the infringement claim, actual damages of $306,650 and defendants' profits of $60,000.

The Court concluded that the evidence, when construed in the light most favorable to plaintiffs, permitted only one reasonable conclusion, which was contrary to the jury's verdict concerning lost profits. "Having entirely failed to carry their burden proving expenses, plaintiffs are not entitled, as a matter of law, to an award of lost profits."

The Court further concluded that the jury's awards for injury to reputation and injury to goodwill were contrary to the Court's instructions and unsupported by the evidence.

The Court denied plaintiffs' motion for attorney fees under the Lanham Act in light of defendants' overall success and lack of bad faith. However, Plaintiffs were entitled to attorneys fees under the state consumer protection claim -- which the Court limited to $50,000 (or 10% of the amount requested by Plaintiffs).

Lastly, the Court entered a limited permanent injunction.

Copyright Case Dismissed Against 50 Cent Over Crime Story/Book

Winstead v. Jackson, et al., No. 2:10-cv-05783 (D.N.J. Sept. 20, 2011) [Doc. 45].

In this copyright infringement action, Plaintiff alleges that Defendants’ movie and companion album, both entitled Before I Self Destruct, infringe upon Plaintiff’s copyright in his book, The Preachers Son - But the Streets Turned Me Into a Gangster. Plaintiff is the author and sole owner of the copyright for the Book. Plaintiff alleges that Defendants infringed upon the

copyright of the Book by publishing and selling the Movie and the Album, both of which

Plaintiff contends derive their content from the Book.

The Court granted defendants' motion to dismiss for failure to state a claim, under Fed. R. Civ. P. 12(b)(6). Plaintiff avers that the film duplicates the generalized theme and story

of the book and amounts to actionable copying. "However, general plot ideas and themes lie in

the public domain and are not protected by copyright law." Continuing:

There is no doubt that the Book and Film do share similar characters, themes, as well as a similar setting. However, this s haring of common features is only natural since both works feature a protagonist who has a difficult upbringing and turns to a life of violence and street crime, a story which has long ago been part of the public domain and which has been the subject of numerous movies and television shows. Thus, both works may properly contain gang life in inner-city New Jersey, characters spending time in jail, the search for an ex-girlfriend upon release from prison, making love in the shower, obtaining money through criminal activity, purchasing fancy clothes and accessories with the proceeds of crime, shoot-outs, murder, and the loss of a parent.

The Court further held that commonly used words, phrases and cliches used in both the book and movie/album are not protectable. Also, Plaintiff's state common law claims were pre-empted by the Copyright Act.

Lastly, because the Court held that Defendants did not infringe on Plaintiff’s copyright, Plaintiff’s claims of vicarious and contributory infringement fail since they hinge on a preliminary finding of direct infringement.

Statutory Damages Awarded To EMI For Willful Infringement

EMI Entertainment v. Karen Records, Inc. et al, No. 1:05-cv-00390 (S.D.N.Y. filed Aug. 26, 2011) (Holwell, J.) [Doc. 110 Memorandum Opinion and Order].

The court found that defendants willfully infringed EMI's copyrights in the four musical compositions at issue and awarded EMI $25,000 for infringement of each composition (total $100,000) for which all defendants -- corporate and individual -- shall be jointly and severally liable.

The Court had previously granted EMI summary judgment on liability as to sales on or after January 14, 2002 of albums containing the four musical compositions. 603 F. Supp.2d 759 (SDNY 2009). Now, the Court analyzed EMI's statutory damages request and found that defendants infringement was willful based on defendants industry experience and copyright ownership, prior lawsuit regarding similar practices and a specific warning. The next step was determining the amount of damages ($25,000 per work) and then analyzing whether the individual defendants should be jointly and severally liable. They were because they had the right and ability to supervise the infringing activity and a direct financial interest in such activities.

Zappa v Rykodisc Decision

Gail Zappa v. Rykodisc, Inc., 08 Civ. 396 (WHP), NYLJ 1202512134305, at *1 (S.D.N.Y. decided August 17, 2011)

Summary Judgments In MP3Tunes Case

Capitol Records, Inc. v. MP3Tunes, LLC, 1:07-cv-09931-WHP (S.D.N.Y. filed 8/22/2011) [Doc. 267].

"This case turns in large part on whether MP3tunes is eligible for protection under the safe harbors created by the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. 512."

The Court addressed Plaintiff's argument that MP3tunes failed to reasonably implement a repeat infringer policy. The court distinguished between "blatant infringers" and users who merely consume the content and found "this applies to MP3tunes executives." There was no evidence that executives or employees had firsthand knowledge that websites linked on the sideload.com website were unauthorized. Additionally, MP3tunes did nor purposefully blind itself to its users' identities and activities, and had a procedure for responding to DMCA takedown notices.

The Court next addressed MP3tune's compliance with Plaintiff's take-down notices. The court found that MP3tunes was obligated to remove specifice works traceable to users' "lockers" and that MP3tunes interpreted the reach of Plaintiff's notices too narrowly. However, MP3tunes was not obligated to take down all of Plaintiff's cotnent because the notices provided a representative list. Plaintiff had to provide sufficient information --additional web addresses -- for MP3tunes to locate other infringing material. "Absent adequate notice, MP3tunes would need to conduct a burdensome investigation in order to determine whether songs in its users' accounts were unauthorized copies. As discussed, the DMCA does not place this burden on service providers."

The Court next addressed actual or "red flag" knowledge of infringement. The Court found that MP3tunes "undoubtedly...is aware that some level of infringement occurs. But there is no genuine dispute that MP3tunes did not have specific 'red flag' knowledge with respect to any particular link...other than the URLs noticed [in the DMCA takedowns]."

The Court next addressed defendant's benefit and control of infringing activity, finding "at worst, MP3tunes set up a fully automated system where users can choose to download infringing content."

In sum, MP3tunes could claim safe harbor protection for plaintiff's works stored on and linked to on the websites. However, MP3tunes did not qualify for safe harbor protection for songs identified in takedown notices which it failed to remove.

The Court then turned to whether MP3tunes is secondarily liable for storing material at the direction if its users. The court found that MP3tunes knowledge of the unauthorized use of infringing material "is manifest." "Accordingly, [Plaintiff's] motion for summary judgment on its claim for contributory infringement with respect to the songs listed in [Plaintiff's] takedown notices and which MP3tunes failed to removed from users' lockers is granted."

The Court next turned to direct infringment. Plaintiff motion with respect to songs downloaded by employees was denied because there was a dispute as to whether the songs were downloaded by employees in the course of their employment. On the other hand, an individual named defendant was directly liable for the songs personally "sideloaded" from unauthorized sites.

"Hey Micky!" Malpractice Action Survives Dismissal

Basilotta v. Warshavsky, 115524/09, NYLJ 1202511322101, at *1 (Sup.Ct., N.Y. Co., decided August 2, 2011)

The singer of the 1980's hit song that starts "Oh Micky you're so fine, you're so fine you blow my mind! Hey Mickey!" can proceed with her malpractice action against an attorney she claims failed to diligently protect her rights to the song. The Court found that the suit was not time barred.